Can We Fire Someone Who Comes to Work Drunk?

Dear Rita: Our receptionist reeked of alcohol when she arrived at work today. This is not the first time this has happened, especially on a Monday morning. We have spoken to her several times and, as in the past, her supervisor took her aside and asked if she had been drinking. The receptionist denied she had any alcohol to drink that day, but said she had attended a party the night before where she had been drinking. Because she is the face of our organization, we cannot have clients checking in with an employee who so often appears to be "under the influence." What can we do about this situation, as she is not actually drinking on the job nor does it seem to affect her performance? -- Stumped and Frustrated

Dear Stumped and Frustrated: The first place to go is to your personnel handbook. Hopefully, there you will find a Drug and Alcohol policy.

Even if her performance isn't affected obviously, you can still take action if you have "reasonable suspicion" that an employee is under the influence at work. Since only a lab test can determine whether this is true, you will want to look in your handbook for statements that:

Ban drug and alcohol use in the workplace and require that employees not be under the influence at work.

Specify that employees will be required to undergo alcohol/drug testing when there is reasonable suspicion that the employee is under the influence of alcohol/ drugs while at work.

Identify who will conduct the alcohol/drug testing.

State whether the employee's physician or a laboratory of the employee's selection may conduct a retest.

Tell employees that if they are taking an over-the-counter or prescribed medication, he/she should advise the employer of that fact prior to testing.

Address what will occur if the employer believes an employee has intentionally interfered with a test, e.g., by substituting someone else's urine for his or her own.

Address the employee's status while waiting for the test results, e.g., suspension with or without pay

State clearly the consequence of being at work under the influence, e.g., discipline, including suspension and termination.

After reviewing your policy, you should document the fact that the employee smells of alcohol (substantiated by witnesses) and send the employee for an alcohol test. It is wise to have a prearranged lab that tests for levels of alcohol in the blood. Remember to respect the employee's privacy in providing samples.

You should not let the employee drive herself to the lab but have her taken to the lab by another employee. You should also have set up in advance what type of test you want to use, e.g., urine, blood, Breathalyzer, hair, saliva. You should verify with the lab its procedure to ensure that the sample given is the sample tested. You may decide to require a sample sufficient to test half of it, preserving the remainder for a later test if the first one is challenged.

If the first test is positive, you should have thought through whether you want to provide the opportunity for a retest. Sometimes, the first screening test (which is inexpensive) is not very reliable, so a second different, more expensive test should be performed to confirm the results.

If the test result is not immediately available, you should send the employee home, with/without pay, and consider what action you are going to take upon receipt of the results. DO NOT LET THE EMPLOYEE DRIVE HERSELF HOME. Again, have her transported by one of your employees.

What if the test is positive?

Let's now consider next steps if the test results show that the employee, although not drinking on the job, has arrived at work with a measurable level of alcohol in her system. The results of tests should remain confidential. The results should be provided only to those individuals with a "need to know."

If this was the first time, you could either give her a warning or send her for an EAP consult, but in your letter you state that this has happened several times before and she has been previously warned.

Alcoholism, FMLA and ADA

You have enough information to apprise you that you may be dealing with the disease of alcoholism. Although you can hold an alcoholic employee to the same job performance standards as other employees, you will have to consider two federal laws: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

Let's first look at the FMLA issues. If you have 50 or more employees and you determine that the employee is an alcoholic, the employee may request time off for treatment under the FMLA. If so, you should grant the time off. Upon her return, you can deal with the performance issue and require the employee to sign a "last chance" agreement stating that any further evidence of coming to work intoxicated will subject her to termination.

If you do not have at least 50 employees, but have 15 or more employees, you may still have to consider the employee's request for accommodation for alcohol treatment under the ADA. You can perform the same analysis as for any other time-off request for a disability, weighing whether it creates an undue hardship for your nonprofit to give time off for treatment. Also check your state laws, as some states also allow time off for treatment (generally subject to the undue hardship analysis), but there is no law that requires the employer to accommodate the behavior that accompanies alcoholism. Therefore, you do not have to accommodate your receptionist coming to work smelling of alcohol.

Suppose your receptionist requests intermittent time off during the day for treatment, perhaps to attend Alcoholics Anonymous (AA) meetings. You must consider only job-related factors, and basically ask and answer the question: By making the requested accommodation, can the employee continue to perform the essential functions of the job? You do not have to put your clients, co-workers, or business at risk in order to keep an employee on the job.

The bottom line for "reasonable suspicion" alcohol testing is that supervisors are in the best position to recognize that an employee has a problem with alcohol that is interfering with his/her ability to get the job done. However, supervisors are not substance abuse counselors, nor do they have the expertise to diagnose alcohol problems. What they can do is document facts of alcoholic behavior, such as smelling alcohol on an employee's breath, slurring of words, spotty attendance, or other signs. Only medical testing can answer the question as to whether the employee is under the influence while at work.

Regarding your receptionist, she needs to be tested and, depending upon whether or not she seeks accommodation for treatment of alcoholism, you can determine whether she will require either time off for treatment or separation from employment.

Attorney Pamela Fyfe is half of the Ask Rita in HR team that contributes this regular column to Blue Avocado. As a staff member ofthe Nonprofits Insurance Alliance Group, she answers questions at no charge from nonprofits insured by the Alliance for Nonprofit Insurance (ANI) and Nonprofits' Insurance Alliance of California (NIAC). She is conducting a webinar in July for Blue Avocado on the legalities of social networking for nonprofits (it's sold out at 500 spaces). We like this quote that references her prior career as a math teacher: "If I can teach a 16-year-old algebra, I can teach anybody HR."

Comments

This is a very HR and legal-heavy response, designed to eliminate any possibility of legal action, even though the prospect of her suing for firing her over this is tiny.

How about this: "Mary, we cannot have you representing us to clients if you smell like alcohol or appear to have been drinking. We're not saying that you have been drinking, as we don't know that. We're talking solely about the impression you're creating. If you continue to show up at work giving that impression, we will need to let you go that day." The end.

Assuming this is an at-will employee, this is way simpler and more direct, and highly unlikely to get you in legal trouble.

And what happens if the employee refuses to go for the blood test for alcohol ?

What happens when the employee who is "assigned" to drive Receptionist to a "pre-arranged" (such careful planning in advance... :) blood testing lab is abused, physically or verbally, if Receptionist acts out in the car?

Does the organization's liability insurance even cover an employee transporting a suspected inebriated person to the lab, or anywhere ?

Rita's answers are just so pat, when the actual situation can be messy beyond imagining.

Rita's answer is thorough and sound, but it assumes the scenario takes place in a large organization with a fully staffed HR department and adequate staff to both drive the receptionist to a testing facility as well as available staff to step in at the front desk. I would suspect that any organization with all those resources in place wouldn't need advice here on this topic; if that's not the case, the input is sound.

But for smaller agencies, a more immediate, practical response is needed. Obviously, immediate action is needed, which can be as simple as stating that the smell of alcohol on Rita prevents her from adequately performing her duties, regardless of how well she speaks, types, takes messages, or whatever. Smelling of alcohol is no more acceptable than swearing at clients is.

Rita should be removed from the workplace with appropriate documentation of the reasons why. You can offer her the option of taking an alcohol test to clear her name, (and I would have the agency pay for the costs), and allow her to return to her position once sober, but put in writing that a repeat offense will result in additional adverse action, up to and including termination.

As for legal liability, you're always at risk, regardless of how ironclad your procedures are. My experience has been that individuals who sue for wrongful termination rarely consider their chance for successfully winning their suit (it's more about "getting even"), and there's usually an attorney that will take even extreme cases in the hope of gaining a settlement rather than an outright win.

Pamela Fyfe presents a textbook case for dealing with this common issue. In my 37 years of management experience, this is standard HR procedure.

This stuff is messy but not dealing with it is even more messy. These situations do not get better by themselves and they make a lot of other things worse (like teamwork, reputation, etc.).

One caveat is to be very careful about offering to support time off for evaluation, treatment etc. I told a person in this situation "you are a valued employee and to keep your job you need to be evaluated." Then when the person was found to have alcoholism, it was to participate in treatment.

I came to regret the decision. While the person was on leave, I discovered a variety of serious issues and decided I no longer wanted to keep the person on staff. That lead to a contested termination and an ugly situation.

However, many years later the person thanked me for their termination, saying I have never told you but I have been in AA since.....(and that was when I sent them into treatment).

People who drink heavily in the evening often smell of alcohol the next day (even if they have showered) because the alcohol still in the body comes out through their pores. If this happens frequently the person obviously has a drinking problem, even if he or she is not drinking on the job. I would recommend a compassionate approach involving counseling.

I agree that you will first need to rule out any health status. Once you have determined that the employee is under the influence of alcohol, the immediate should be to get the employee out of the work environment to avoid any injuries to themselves or others at the workplace. Once the employee is able to return to work, then consider, as per the laid down regulations, what actions need to be taken to deal with the employee's behavior. Counseling with the employee might help to ensure there is no repeat incident. Betty